DEPARTMENT OF LAW
UNIVERSITY
OF PENNSYLVANIA
LAW REVIEW
AND AMERICAN LAW REGISTER.
FOUNDED 1852
VOL.
{8
.S-1
APRIL, 1909
Nuvuan
7
THE EXTENT OF THE TREATY-MAKING POWER
OF THE PRESIDENT AND SENATE OF THE
UNITED STATES.
Something has been written on the extent of the treatymaking povier of the President and the Senate. Little has
been decided.
While the courts have frequently decided questions involving treaties, most of these decisions have been confined
to the determination of the question whether a right claimed
under the treaty in question was covered by the terms of the
treaty, or whether such right, if within the scope of the
treaty, had been taken away by subsequent legislation. A
very few cases have involved a determination of the extent
of the treaty-making power, and in these few the point decided is so narrow, was so inadequately, or not at all argued,
or has been rendered so doubtful by dicta of later judges
of the Supreme Court as to leave the whole question open.
There are only four clauses in the Constitution and its
amendments, in which treaties are mentioned. The first
is a prohibition on the States: "Nc State shall enter into
any treaty, alliance, or confederation." Art. I., § io,cl. i.
The second designates the repository of the power: "He
[the President] shall have power, by and with the advice
and consent of the Senate, to make treaties, provided twothirds of the Senators present concur." Art. II., § 2, cl. 2.
(435)
EXTENT OF TREATY-MAKING POWER
The third gives the federal courts jurisdiction in cases
arising under treaties: "The judicial power shall extend to
all cases in law and equity arising under this Constitution,
the laws of the United States and treaties made, or which
shall be made, under their authority." Art. III., § 2.
The fourth provides for the legal effect of a treaty. "This
Constitution and the laws of the United States, which shall
be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the
judges in every State shall be bound thereby, anything in
the Constitution or laws of any State to the contrary notwithstanding." Art. VI. § 2.
There is another clause which provides: "No State shall,
without the consent of Congress, enter into any agreement
or compact with another State or with a foreign power
* * **" Art. I.,§Io, cl. 2.
It will be seen from a reading of these provisions that
the treaty-making ppwer is not in terms either limited or
made unlimited. It is not, in terms, made absolute, as if
it had been provided that all other powers granted- or reserved by this Constitution shall be subject to the treatymaking power, but neither is it in terms limited, as if it
had been provided that this power shall not be used to deprive any other departments of the federal government, or
the States, of any powers vested in or reserved to them respectively. Is the treaty-making power then limited, or
absolute? All who have written on the question agree that
it is limited, though all do not agree where the limitation
should be placed.2
If, as is admitted, the treaty-making power is impliedly
'In the early part of the x9th century some members of Congress,
in debate, seem to have held the view that this power was unlimited. In
the debate on the Louisiana treaty, Senator Cocke, of Tennessee, said:
"I would ask what are the constitutional limitations? (on the treatymaking power) It has none, sir, in that respect, and I contend that the
treaty-making powers are competent to the full and free exercise of
their best judgment in making treaties, without linitation of po.wer."
Annals of Cong. 0803-1804), p. 71.
OF THE PRESIDENT AND SENATZ
limited, what are the limitations on it? The general answer, in whatever form it is expressed, is that it is limited
by other provisions of the Constitution.
The following extracts show the differing views that lave bee
expressed on this question:
"As a sovereign power, invested with the sole management of foreign
relations, they must have the right to make treaties of every nature and
on every subject which the Constitution does not expressly or impliedly
exclude." Simeon E. Baldwin, 7 Col. L Rev., p. go.
"A treaty to change the organization of the government or annihilate
its sovereignty, to overturn its republican form or to deprive it of its
constitutional powers, would be void, because it would destroy what it
was designed merely to fulfil, the will of the people." Story on the
Const., § 1506.
"By treaty we may not alter the constitutional distribution of powers
between the three departments of our Federal Government, or confer on
any department a power not conferred on it by the Constitution....
A treaty cannot . . . violate any specific general restriction on
federal power which may be found in the Constitution. . . . There
are . . . implied limitations on the treaty-making power . . .
arising out of the fact that the Constitution was adopted by a free
people imbued with the importance of individual liberty and firmly believing in democratic institutions. Win. Draper Lewis, 55 Am. L.Reg.,
pp. 8o0-2
Field, J., in De Geofroy v. Riggs, io Sup. Ct.Rep., p. 297, says: "The
treaty power, as expressed in the Constitution, is in terms unlimited,
except by those restraints which are found in that instrument against the
action of the government, or of its departments, and those arising from
the nature of the government itself, and of that of the States."
Another writer declares: "The treaty-making power is pre-eminently
a commercial power. It should not be made to interfere with domestic
policy and local home rule." Andrew A. Bruce, 54 Am. L Reg, p. 6gg.
Cooley says: "The Constitution imposes no restrlction upon this
power, but it is subject to the implied restriction that nothing can be
done under it which changes the Constitution of the country, or robs
a department of the government or any of the States of its constitutional authority." Const. Law, 103.
Butler, in his two-volume work on the Treaty-Making Power, says:
. . . the exercise thereof is controlled not only by constitutional
limitations, but also by the general rules of law applicable to all sovereign powers and to their exercise of this prerogative." p. 4. Mr.
Butler thinks that the treaty-making power "is derived not only from
the powers expressly conferred by the Constitution, but that it is also
possessed by that government as an attribute of sovereignty," ibid. p. 5.
Pomeroy, Introduc. to Const. L of U. S. pp. 559-571, says: "This
power cannot be used to deprive Congress or the Judiciary or the President of any general powers which are granted by the Constitution."
White, J., in Downes v. Bidwell, denied the general proposition that
territory of the United States may, as a mere act of sale, be disposed of.
"Though," he says, "from the exigencies of a calamitous war or the
settlement of boundaries it may be that citizens of the United States
may be expatriated by the act of the treaty-making power, impliedly or
expressly ratified by Congress," 182 U. S.3x7.
EXTENT OF TREATY-MAKING
POWER
A limitation is implied "from the nature of 2the government itself, and of that of the States," says one.
It is "subject to the implied restriction that nothing
can be done under it which changes the Constitution of the
country or robs a department of the government or of any
of the States of its constitutional authority," says another.It is said by another writer to be impliedly controlled "not
only by consitutional limitations, but also by the general
rules of law applicable to all sovereign powers and to their
exercise of this prerogative.'
Another says, a limitation is implied from "the nature
of our institutions and the distribution of powers between
the general government and the State governments."'
A limitation is also said be implied from "the existence
Swayne, J.,in The Cherokee Tobacco, xx WalL, p. 62o says: "It
recd hardly be said that a treaty cannot change the Constitution or be
held valid if it be in violation of that instrument. This results from
the nature and fundamental principles of our government,"
Taney, C. J., says: "The power to make treaties is given by the
Constitution in geveral tcrms, without any description of the objects
intended to be embraced by it, and consequently it was designed to
include all those subjects which, in the ordinary intercourse of nations,
had usually been made subjects of negotiation and.treaty, and which
are consistent with the nature of our institutions and the distribution of
powers between the general-and state governments." Holmes v. Jennison, i -Pet., p. 569.
Daniel, J., in the License Cases, 5 How., p. 613, says: "Laws of the
United States in order to be bindi.g must be within the legitimate
powers vested by the Constitution. Treaties to be valid must be within
the scope of the sam. powers, for there can be- no 'authority of the
United States' save what is derived mediately or immediately and regularly and legitimately from the Constitution. A treaty no more than an
ordinary statute can arbitrarily cede away any one right of a state or
of a citizen of 'a state."
"If the people of the several states of this union reserved to themselves [which he holds they did] the power of expelling from their
borders any person or class of persons whom it might deem dangerous
to its peace, or likely to produce a physical or moral evil among its
citizens, then any treaty or law of ongress invading this right and
authorizing the introduction of any person or description of persons
against the consent of the state would be an usurpation of power which
this court could neither recognize nor enforce." Taney, C. J., in The
Passenger Cases, 7 How., p. 466.
'Field, J., in De Geofrey v. Riggs, to Sup. Ct. Rep. 297.
' Cooley, Const. L, 1o3.
'Butler, Treaty-Making Power of the U. S.. p. 4.
'Taney, C. J., in Holmes v. Jennison, it Pet., p. 569.
OF THE PRESIDENT AND SENATE
of the States, parties to the confederation, having control
for most purposes over their own territory." 6
Some of these statements of the implied restrictions on
the treaty-making power would seem to make the restriction as wide as the restrictions on Congress, others would
make the restriction narrower. Most of this latter class
are so indefinite that tinder them one might place the restriction where he pleased under a given state of facts
and still be within the statement of the implied restriction.T
It is a general principle of constitutional law that any
given provision of the Constitution must be construed in
the light of other provisions of the same instrument. Are
there then any provisions in the Constitution which impliedly limit the treaty-making power, so that if a treaty
be made which conflicts with such provisions, such treaty
would be unconstitutional? If so, what are they?
By our constitution a certain form of government is
created; the governing power is divided into three general
departments; the constitution of these departments is provided for* certain enumerated powers are conferred on this
government; certain other powers are denied to it generally,
or denied to certain departments of it; of the powers conferred some are vested in congress; some in the executive;
one in the executive and one branch of the legislative; some
in the judiciary; some are prohibited to the States. Finally
all powers not granted to the federal government*or prohibited to the States are reserved to the States or to the
people.
A treaty then may possibly be unconstitutional in any
of the following cases: (I) If it alters. the form of our
government; (2) If it alters the general departmental conWoolsey, Internat. 1aw, § 99.
'E. g., Under Mr. Butler's statement, above, that the treaty power is
controlled by "constitutional limitations," he arrives at the conclusion
that by treaty the Federal Government can alienate the territory of a
state. While under Justice Field's statement that a limitation is implied
"from the nature of the governmer t itself and that of the states," Mr.
Justice Field says it would not be contended that such territory could be
aliened without the consent of the state.
EXTENT OF TREATY-MAKING
tOWER
struction of the government; (3) If it changes the constitution of any of the departments; (4) If it deprives the
federal government or any of its departments of its delegated powers, or transfers such power to another department; (5) If it seeks to exercise a power confided to another department of the federal government; (6) If by it
it is sought to exercise a power prohibited to the federal
government or reserved to the States.
A
TREATY ALTERING THE FORM OF THE GOVERNMENT.
It is universally admitted that a treaty though negotiated in the constitutional method by the President and
two-thirds of the Senate, the effect of which would be to
alter our form of government from a republic to, say, a
monarchy, would be unconstitutional. The President and
Senate are not only not expressly forbidden to make such
a treaty, as Congress is forbidden to make a law abridging
freedom of speech, or as the federal courts are forbidden
to entertain a suit against a State by a citizen of another
State, but the supposed alteration is not even forbidden in
general terms, such as the abridgment of the right of the
people to bear arms is forbidden. Why then, since the constitution says the President and three-fourths of the Senate
"shall have power to make treaties," and places no limit on
that power, and no limitation on this particular exercise of
the power is found anywhere in the Constitution, would such
a treaty be void? Story answers-because "a power given by
the constitution cannot be construed to authorize a destruction of other powers given in the same instrument; it must be
construed therefore in subordination to it and cannot supercede or interfere with any other of its fundamental provisions." But why can it not be so construed? Story again
answers--"because to so construe it would destroy what
it [the Constitution] was designed merely to fulfil, the will
of the people."
Another form of the answer, commonly
*Story on the Const., § i5o8; Taney, C. J., in Holmes v. Jennison, it
Pet., p. 569, gives as the reason that the framers of the Constitution did
not intend to vest such power in the treaty-makling power.
.OF THE PRESIDENT AND SENATE
given, is that "the treaty power cannot be used to change the
constitution."
To these reasons for limiting the power 'it might be
answered that since the people or States in conferring the
treaty-making power conferred it without any limitation,
it was their will that it should be without limitation; that
their will was to confer it absolutely, as it appears in the
language of the section conferring it; that if they had not,
so willed they 'would have expressed some restriction, as
they did in conferring power on Congress. To strengthen
this position there might be further pointed out the necessity for the vesting of such absolute and unrestricted power
by showing that it is impossible to foresee what complications may arise in the future which might necessitate
even such a radical step as a change in our form of government; e. g., a calamitous and unsuccessful war; and- that
the President and Senate should be clothed with power to
meet such an emergency. To the reason frequently given,
that the treaty-power cannot be used to change the constitution, the simple answer is that if the constitution, as appears
on its face, vests the treaty-making power unlimited, it is
not changing the constitution to so construe it. None, even
the most zealous in upholding the prerogative of the treatymaking power, have as yet advanced this argument in support of the power of the President and Senate to change
our form of government. Nor is it conceivable that this
argument would receive serious consideration from any
•tudent of constitutional law or from any court empowered
to interpret the Constitution.
VALIDITY OF A TREATY ALTERING THE GENERAL DEPARTMENTAL ORGANIZATION OF THE GOVERNMENT.
It is likewise admitted that a treaty which should undertake to alter our tripartite system of government, e. g., to
abolish one of the departments, executive, legislative or
judicial, would be unconstitutional. The reasons assigned
are the same as those given above :-it was the "will of the
EXTENT OF TREATY-MAKING
POWER
people" that it should be otherwise, or "a treaty cannot
change the constitution." The answer suggested above
would be as conclusive in this case as in the first.
VALIDITY
OF A
TREATY
CHANGING
THE ORGANIZATION
OR CONSTITUTION OF ANY OF THE DEPARTMENTS OF
THE GOVERNMENT.
It is also admitted that the President and Senate have
no power to make a treaty changing the constitution or organization of any department of the Federal Government,
e. g., a treaty providing that each State or a certain State
should be entitled to three Senators, or that an alien born
should be eligible for the Presidency, or that members of
the House should be appointed by the President, or that
the President should be a court of last resort for foreigners,
above the Supreme Court. The same reason of Story might
be given for the invalidity of such a treaty-it was "the
will of the people" that these departments should not be
altered by treaty. The same answer-it was the "will of
the people" that the treaty-power should be absolute, since
they did not limit it-might be made. In this class of
cases however a further reason might be given. The Constitution does not specifically provide that the government
shall be a republic, or a federal state. That it is such is an
inference from many provisions of the Constitution construed together, but in this case (and the immediately preceding) the Constitution specifically provides for certain
departments of the government and for the manner in which
the departments hall be organized: "The Senate
shall be conposed of two Senators from each State chosen
by the legislature thereof;" "No person except a naturalborn citizen .
.
shall be eligible to the officc of President." But this form of the answer is only another way
of stating the "will of the people" answer, and is open to
the same reply. True, the Constitution does provide for
the organiation of the departments, but italso vests a
treaty-making power in the President and Senate, and leaves
OF TUE PIRESIDENT AND SENATE
tl:i I,,%% cr unlimnied, hence although until the power is exercised in a manner to change the composition of a department, the composition of that department must remain as
provided for by the Constitution, when the President and
Senate, by virtue of their unlimited power, choose by
a treaty to change it, they may do so. The argument from necessity, too, is as valid in these cases as
in the first. How necessary, it may be said, is the possession of such power in the President and Senate! and
how. wise were the framers of the Constitution in investing
them with it., Suppose it should be our ill fortune to wage
an unsuccessful war with Japan, and she should demand
as the price of peace that the Presidency should be open to
the candidacy of Japanese residents, educated under treaty
rights in the schools of California. Is it possible that there
is no power to end the war by making such a treaty! Is
a sovereign nation so helpless! Yet such is the state to
which all of our publicists, and all of our judges who have
spoken on the subject would reduce us.
A
TREATY DEPRIVING THE FEDERAL GOVERNMENT OF ITS
DELEGATED Pows.
It is also said by Story, and denied by none, that a treaty
which undertook to deprive the federal government of its
delegated powers, e.g., one that vested the power over interstate commerce, or the treaty-making power itself in some
other government or revested it in the States, would be unconstitutional. The same reason is given for this limitation. The same answer suggested above might be made to
the reason as given.
VALIDITY OF A TREATY THAT SEEKS TO EXERCISE A POWER
CONFERRED BY THE CONSTITUTION ON ANOTHER DEPARTMENT OF THE FEDERAL GOVERNMENT.
We here come to a class of cases which differ in this
respect from the preceding-heretofore the things supposed
to.be attempted by treaty were things which no other de-
EXTENT OF TREATY-MAKING
POWER
partment of the government is specifically given power
to do; under this head we are to consider things which admittedly are within the power vested in the federal government, the power to do which, however, is specifically confided to a department other than the treaty-making power.
Under this head would fall a treaty which, without the consent of Congress, undertook to regulate interstate or foreign commerce; which undertook to establish courts; to
suspend the writ of habeas corpus; to expel a member of
Congress; to fix the compensation of federal officers; to
raise revenue; to lay taxes; to establish a rule of naturalization; to provide for the punishment of crime; to declare
war; to provide for the government of the District of Columbia; to levy taxes, or to admit new States into the Union.
These are some of the things the Constitution says Congress shall have power to do. Can the President and twothirds of the Senate by a treaty do them without the consent of one branch of Congress-the House of Representatives ?
If the President and Senate can make a treaty with England providing for the regulation of commerce between the
United States and England without the assent of the House,
anc such a treaty is, what the Constitution says treaties
shall be, the supreme law of the land-and it is idle to talk
of the power to make such treaty if such treaty when made
is not effective-then they can make such a treaty with all
foreign countries and concerning all commerce with such
If this should be- done, has not Concountries.
gress been deprived of the power, which the Constitution
says it shall have, to regulate commerce? Has not the
'It need not be said that reference is here had to the power over
particular things vested in Congress, not to the general power given to
Congress to make laws necessary for carrying into execution the powers
vested specifically in other departments of the Federal Government
This last is a power super-added to the powers committed to' Congress
for the purpose of assisting other departments in the execution of
powers intrusted not to Congress, but to such other departments. Of
course, this power of congress is conditioned on the power of such
other department. It can neither add to nor take away from the power
of any other department.
OF THE PRESIDENT AND SENATE
treaty-making power been used to "change the Constitution"? It has, unless we adopt the argument that since the
treaty-making power was given without limitation in terms,
it was intended to be unlimited, and hence the Constitution
is not changed by so holding it-an argument repudiated
above as equally forcible in proving that the treaty-making
power may change our form of government, or cede or recede the powers vested in the federal government.
The same considerations apply to the other powers vested
in Congress.
To Congress is confided the power to declare war. If the
President and Senate may by a treaty exercise this power
and such treaty is the supreme law of the land, what becomes of the power which the Constitution says Congress
shall have to declare war? 10
Congress is given the power to lay, and collect taxes.
would not an exercise of this power by the President and
the Senate change that clause of the constitution that grants
this power to Congress? 11
If, under the treaty power, armies may be raised and
equipped, or if by the exercise of that power the country
may be bound to keep an army in the field, or provide a
navy, or call forth the militia, or do any of the things cornmitted to Congress without the consent or against the vote
of the House of Representatives, what becomes of the pro'In Head Money Cases, 112 U. S., at p. 599, Mr. Justice Miller,
delivering the opinion of the Court, says: "A treaty is made by the
President and the Senate. Stai.tes are made by the President, the
Senate and the House of Representatives. The addition of the latter
body to the other two in making a law certainly does not render it less
entitled to respect in the matter of its repeal or modification than a
treaty made by the two. If there be any difference in this iespect, it
would seem to be in favor of an act in which all three of the bodies
participate. And such is, in fact, the case in a declarationof war, which
must be made by Congress, and which, when made, usually suspends or
destroys existing treaties between the nations thus at war." (Italics the
present writer's.)
'Chief Justice Fuller, speaking for himself, Harlan, Brewer and
Peckham, 13., says, in Downes v. Bidwell, 182 U. S., p. 37o. "It certainly
cannot be admitted that the power of Congress to lay and collect taxes
and duties can be curtailed by an arrangement with a foreign nation by
the President and two-thirds of a quorum of the Senate
EXTENT OF TREATY-MAKING POWER
visions of the Constitution which say Congress shall have
power to do these things?
The same result is reached by another line of reasoning. If Congress, or a constituent part of Congress, may
be deprived by the treaty power of one of the powers vested
in it by the constitution, it may be deprived of all, in which
case that is in effect done what all admit cannot be done,
our tripartite organization of government is destroyed-the
power to make treaties has become a power to abolish in
effect a constituent part of the government and that part
which was intended to reflect most directly the will of the
people.
If, as held by Chief Justice Marshall,1 2 a state cannot
tax a Federal Bank because such state might conceivably
tax it so greatly as to destroy it, .and it has no power to
destroy, it would seem to follow by parity of reasoning that,
if the treaty-making power has no power to destroy the
House of Representatives, it has no power to exercise those
powers of Congress which if exercised fully by it would
result in the destruction of the House.
If the treaty-making power has this extent even the right
of the House, heretofore thought to be necessary to a free
government, to originate measures for raising revenue would
not be safe from it. The Constitution provides only that
"all bills for raising revenue shall originate in the House
of Representatives;" but since a treaty is not a "bill," a
treaty imposing a tax or containing tariff provisions would
not run foul of this limitation.
Nor is it an answer to say that the power is not really
taken from the House of Representatives since a bil may
be passed by Congress overruling the treaty. Such biln
cannot be passed by the House alone, but would require the
consent of the Senate, which by the assumption is acting
with the President in opposition to the House.
It may be answered to this that there is no more deprivation of any right of the House in this case than in any case
" McCulloch v. Maryland, 4 Wheat. 316.
OF THE PRESIDENT AND SENATE
447
where the Senate refuses to acquiesce in a bill passed by
the House, or the President vetoes a bill passed by both.
There is this radical difference in the cases; the people of the
United States by the Constitution have given Congress-a
majority of the House plus a majority of the Senate plus the
President, or two-thirds of the House plus two-thirds of
the Senate, without the concurrence of the Presidentthe power to enact legislation on certain specified subjects. The people have not said they must enact legislation on these subjects, but that they may-if the House
wishes to enact such legislation, but is opposed by the
Senate, the legislation is not enacted-power given Congress
has simply not been used. In case, however, the President
and Senate make a treaty on a subject over which power is
given to the House, the Senate and the President, acting concurrently, the power has been used; the law has been enacted,
a new rule of conduct has been imposed on the people, by
substituting a foreign country or an Indian chief for the
House of Representatives. In other words, in the ordinary
case of the failure of the Senate to agree with the House
no legislation is enacted, hence no power is exercised, but
in the case of a treaty such power is exercised and exercised not by Congress, as provided by the Constitution, but
by the treaty-making power.
On this phase of our subject-the right of the treatymaking power to do by treaty what Congress has by the
Constitution been entrusted with-we are not without a
guide. One branch of the treaty-making power itself has
gone on record denying this power.
In x844, April 12, a treaty was signed at Washington,
between the United States and the Republic of Texas, by
which Texas transferred to the United States all its rights
of separate and independent sovereignty and jurisdiction.
Three resolutions were introduced by Mr. Benton, May 13.
They declared that the ratification of the treaty would be
the adoption by the United States of the Texan War, and
that the treaty-making power of the President and Senate
did not include the power of making war, either by declara-
EXTENT OF TRFATY-MAKING
POWER
tion or adoption. On June 8, the treaty was rejected by
the Senate by a vote of 35 to i6.
Immediately preceding the rejecion of the treaty a resolution was introduced by Mr. Henderson declaring that
"such annexation would be properly achieved . . . by
an act of Congress admitting the people of Texas, with defined boundaries, as a new State into the Union."
This course was followed and on March ist, 1845, a
joint resolution to that effect was approved.1s
Another phase of this question has been several times at
issue between the treaty-power and the House, viz., the
power of the President and Senate to make treaties requiring the payment of money by the United States, without
the concurrence of the House or, as it is usually expressed,
the legal right of the House to refuse to appropriate money
necessary to carry into effect a treaty made by the President and the Senate. The contest arose first in Washington's administration over the treaty with England. It was
contended by Washington that under the Constitution a
treaty when made was the supreme law of the land and
therefore the House of Representatives was under an obligation, legal as well as moral, to obey such law by making
the appropriation called for by the treaty and, that it would
be disobeying the law if it refused so to do. Washington
said that any other view of the question would be tantamount to a claim on the part of the House of the right to
participate in the making of treaties. The House refused
to acquiesce in this view of the treaty-power and, while
disclaiming any agency in the making of treaties maintained
the position that a treaty which provided for the payment
of money by the United States must depend for its execution as to such provisions, on a law to be passed by Congress, and that it was the "constitutional right and duty of
the House of Representatives in all such cases to deliberate
on the expediency or inexpediency of carrying such treaty
into effect." 14
'See Crandell, Treaties, Their Making and Enforcement, 95 e! seq.
" Crandall, x=.
OF THE PRESIDENT AND SENATE
449
In 1868, in Johnson's administration, the same question
arose over the Alaskan treaty and, after a conference between a committee of the two Houses, a bill was passed
by both. After reciting that the treaty had been entered
into by the President and Senate, and that stipulations for
payment of money and the admission of certain of the
inhabitants to citizenship could not be "carried into full
force and effect except by legislation to which the consent"
of both Houses of Congress was necessary, the bill authorized the appropriation. 1 '
Thus Congress itself has answered the question as to
the power of the President and Senate alone to make effective treaties on this particul7r subject intrusted to Congress.
Indeed there is judicial authority directly holding that the
treaty-making power does not extend to the appropriation of
money. In the case of Turner v. Am. Bap. Miss. Union, 5
McLean, p. 347, McLean, J., said: "A treaty under the federal constitution is declared to be the supreme law of the
land. This, unquestionably applies to all treaties, where the
treaty-making power, without the aid of Congress, can carry
it into effect. It is not, however, and cannot be the supreme
law of the land, where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as
where the appropriation of money is required, the treaty is
zot perfect. It is not operative, in the sense of the Constitution as money cannot be appropriated by the treaty-making power. . . . And in such a case, the representatives of the people and the states exercise their own judgSThis bill was the result of a compromise between the House and
the Senate, the House having originally passed a bill which read in part:
"Whereas the subjects thus embraced in the stipulation [for the payment to Russia of $7.oo,oo, and for the admission of certain of the
inhabitants of the ceded territory to the enjoyment of the privileges and
immunities of citizens of the United States] of said treaty are among
the subjects which by the Constitution of the United States are subnitted to the power of Congress, and over which Congress has juridiction; and it being for such reason necessary that the consent of
Congress should be given to said stipulation before the same can have
full force and effect . . . to the end that the same [the treaty] may
be carried into effect. . . . Be it enacted, That the assent of Congress
is hereby given to the stipulations of said treaty."
Crandall.
EXTENT OF TREATY-MAKING POWER
ments in granting or withholding the money. TIhey act
upon their own responsibility and not upon the responsibility of the treaty-making power. It cannot bind or control
the legislative action in this respect, and every foreign government may be presumed to know that so far as the treaty
stipulates to pay money, the legislative sanction is required."
The history of treaties concerning revenue laws leads to
the same conclusion.
The early treaties of this kind contained no reference to
Congress, but the House invariably insisted that where the
treaty was in conflict with an existing law it was not effective
until the law was changed by Congress. And they made
good their contention, the President always submitting the
treaty with a recommendation that appropriate legislation be
enacted, and the Senate always joining with the House in
the bill changing the existing law.1 6
In later treaties it has been specifically provided in the
treaty that the treaty should go into effect when, or only
when, laws necessary to carry it into operation had been
passed by Congress, 7 or if not so provided in the treaty
itself the Senate has attached an amendment to that effect.16
In two cases the action of the Senate and of the House
has been even more significant. In the case of the reciprocity
treaty with the German Zollverein of I844 Rufus Choate,
for the Committee on Foreign Relations of the Senate, reported against ratification. Without reference to the merits
of the treaty, the committee was not prepared, he said,
"to sanction so large an innovation upon ancient and uniform practice in respect of the department of the govern.
ment by which duties on imports shall be imposed. .
In the judgment of the comrmittee the legislative is the
department of government by which commerce should be
regulated and laws of revenue be passed." The next year
this position was reiterated by the Senate, and the treaty
"See CrandalL pp. T40-145.
"Crandall, pp. 142-143.
" Crandall, x43-4.
OF THE PRESIDENT AND'SENATE
remained unratified, though ratification was urged by the
President.
In i88o (January 26th) the House of Representatives
passed a resolution declaring that the negotiation by the
President and Senate of commercial treaties fixing the rates
of duty on foreign goods "would, in view of the provisions
of section 7 of Article I of the Constitution of the United
States, be an infraction of the Constitution and an invasion
of one of the highest prerogatives of the House of Representatives." 29
In the Act of Congress, passed in 1897, to carry into effect
the treaty with Cuba relating to the tariff on sugar, a clause
was inserted declaring that nothing in the Act should be
construed on the part of the House that customs duties could
be changed otherwise than by an Act of Congress originating
in the House.2 0
As in treaties ;ippropriating money and raising revenue, so
in other treaties involving matters confided by the Constitution to Congress, as treaties to protect copyrights, patents,
trade-marks and treaties concerning postal regulations.
While the compact with foreign governments is made by the
treaty power, their local effect is determined by laws of
Congress; for while it has never been judicially determined
whether the treaty power is alone sufficient to give such
treaty the effect of law, 21 the Congress has always participated in the making of such treaty in the sense that no such
treaty has ever been given effect, so far as the writer has
been able to discover, that has not been directly authorized
or consented to by both houses of Congress.
The history of the cession of territory to the United States
is the same, and judicial authority confirms history. Justice
Crandall, 14S.
" Crandall, p. z44.
U
"The Supreme Court in The Trade Mark Cases, ioo U. S. ft refused to discuss the question. The Court said: "In what we have here
said we wish to be understood as leaving untouched the whole of the
question of the treaty-waking power over trade-marks, and of the duty
of Congress to pass any laws necessary to carry treaties into effect."
EXTENT OF TREATY-M1AKING
POWER
White, concurring in Downes v. Bidwell, 182 U. S., p. 319,
Shiras and McKenna, J.J., concurring, says: "When the
various treaties by which foreign territory has been acquired are considered in the light of the circumstances which
surround them, it becomes to my mind clearly established
that the treaty-making power was always deemed to be devoid of authority to incorporate territory into the United
States without the assent, express or implied, of Congress,
and that no question to the contrary has ever been mooted."
He further says: "It seems to me impossible to conceive
that the treaty-making power by a mere cession can incorporate an alien people into the United States without the
express or implied approval of Congress. . . . If the
treaty-making power can absolutely, without the consent of
Congress, incorporate territory, and if that power may not
insert conditions against incorporation, it must follow that
the treaty-making power is endowed by the Constitution
with the most unlimited right, susceptible of destroying every
other provision of the Constitution; that is, it may wreck our
institutions."
But it may be said that the argument that treaties negotiated by the President and Senate which provide for things
intrusted to Congress are not effective unless the House
agrees to them by enacting appropriate legislation, does not
go to the power of the President and Senate, but only to
the effect of the treaty after it is made.
The Constitution says of treaties that they shall be the
supreme law of the land. If the President and Senate have
power to make the class of treaties under consideration without the consent of the House, then when made without such
consent they must be the supreme law of the land. But if
when so made they are not effective without legislation by
Congress we have the phenomenon of a supreme law of the
land binding no one in the land until another law orders the
people of the land and the officers of the Government to
obey it.
It is true the Supreme Court has said that some treaties
are self-executing, while others require legislation to make
OF THE PRESIDENT AND SENATE
453
them effective, and that treaties of the former class are ex
proprio vigore the spreme law of the land. No inference,
however, can be dr-wn from this that the President and
Senate have power, by so phrasing a treaty as to make it on
its face self-executing, to oust the House of Representativcs of its -right to a voice in any law on a subject confided
to it by the Constitution. Even Hamilton never suggested
such an easy way to overcome a hostile legislature; the extent of his contention was that the House was under an
obligation to pass the laws necessary for carrying the treaty
into effect,2 2 and the courts have held treaties to be not
self-executing, but to require legislation to give them the
force of law, though they contained no provision which
2
made their efficacy dependent on such legislation. 3
Furthermore, to hold that the President and Senate by
casting a treaty in a self-executing form can oust the House
of its prerogative in legislation would enable the President
and Senate to do what no one has yet claimed for the treaty
power. It would enable the President and Senate by simply
incorporating into the treaty a provision for an appropriation to make it self-executing. By the assumption the treaty
being self-executing, no action by the House would be necessary to make it effective; and being the supreme law of
the land, th President by virtue of his constitutional duty
to "see '%at the laws be faithfully executed" must carry it
' See Letter to Washington, quoted in Crandall, za7.
'Turner v. Am. Rap. Miss. Union, s McLean, 344.
Iredell, J., in Ware v. Hylton, 3 Dall., p. 275, after pointing out that
the language employed in the tariff treaty of x786 between England and
France is: "The two high contracting parties have thought proper to
In consesettle the duties on certain goods and merchandises . ..
quence of which they have agreed upon the following tariff, &C,' and
"His Brittanic majesty reserves the right of countervailing, by additional
linens, etc.," says: "Here is no mention of Parliaduties on . .
ment, and yet, no man living will say that a bare proclamation of the
king, upon the ground of the treaty, would be an authority for the
levying of any duties whatever, but it must be done in the constitutional mode, by act of Parliament, which affords an additional proof,
that where anything of a legislative nature is in contemplation, it is
constantly implied and understood (without express words) that it can
alone be effected by the medium of the legislative authority."
EXTENT OF TREATY-MAKING POWER
into effect. Perhaps he might call on Congress to make the
appropriation, but if Congress refused, since, after all, it is
not the duty of Congress, but of the President, to execute
the law, he might and should execute it by ordering the
treasurer of the United States to pay the money provided
for in the treaty, and on refusal of the treasurer, seize it,
and himself make the appropriation. If the power to
make a treaty self-executing exists in the President and
Senate, this appropriation by the President would not violate the constitutional provision for the payment of money
from the treasury, for Art. I, sec. 9, c. 7, provides that
"no money shall be drawn from the treasury but in consequence of appropriations made by law," and by the assumption such appropriation in the treaty would be made by law.
If this be the law, what a pity it is that Washington and
Johnson, their advisers and the Senates of their administrations did not know it. Much time that was lost and trouble
that was encountered in trying to persuade the House of its
duty to pass an act making the necessary appropriation
called for by the Jay and the Alaskan treaties might have
been saved by the simple expedient of inserting the necessary words of appropriation in the treaty itself. Yet if it
is not the law it is only because the treaty-power cannot be
used to deprive the House of any of the powers given it
by the Constitution.
It may be said that although the Constitution gives Congress power to do these things it does not say that only
Congress shall have such.power, and as the power of the
President and Senate is not limited it may do the same
things by treaty. True, the Constitution does not say
that only Congress shall exercise the powers conferred on
Congress, except as it provides in Art. I, § I, that "all
legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives," and these are the legislative
powers it then proceeds to vest in Congress, but then neither
does it say that only the President and the Senate may make
treaties. The language used in conferring the respective
OF THE PRESIDENT AND SENATE
powers and in providing- for the effect of their exercise is
identical----"He shall have power .
to make treaties."
"Congress shall have power to regulate commerce," etc.,
"all laws passed in pursuance thereof [the Constitution]
and all treaties . .
shall be the supreme law of the
land." The power given Congress is not on its face exclusive, and the power given the treaty-making power is not
on its face exclusive; the power given the treaty-making
power is on its face unlimited, the power given Congress in
relation to the powers vested in it is on its face unlimited. •
Any argument, then, drawn from the words of the Constitution which would give the treaty-making power the
power to make a treaty having the force of law on a subject over which Congress is given power, without the concurrence of the House of Representatives, would give the
Congress, by virtue of its unlimited power to regulate commerce, the right to make a treaty providing for such regulation of commerce. Likewise, any argument that would
deny to Congress the right to make a treaty regulating foreign commerce [by virtue of its unlimited power to regulate such commerce] without the concurrence of the treatymaking power,24 would deny the power of the President and
Senate to make a valid treaty regulating such commerce,
without the consent of the House. Of course, the same
considerations which apply to the regulation of commerce
apply equally to the other powers vested by the Constitution
in Congress, for there is no difference in the language used
to vest in Congress the power to regulate commerce and that
used to vest any of the other powers confided to Congress.
There is involved here no question of "strict construction" or of "broad construction," for it is not a question
of the conferring or reserving of a power, but of the repository or distribution of powers admittedly conferred on
the federal goyernment. A strict construction of the power
of the President and Senate is a broad construction of the
power of Congress and , ce versa.
" The concurrence of two-thirds of the Senate would be necessary
for the treaty.
EXTENT OF TREATY-MAKING
POWER
How then are these seemingly conflicting powers to be
reconciled. The writer ventures to suggest that our history
has answered them correctly, and that that answer is this:
That so far as the domestic or intraterritorial effect of the
exercise of any of the powers committed by the Constitution
to Congress are concerned, Congress alone has any power in
the premises. But Congress has no power to treat with
foreign nations, hence when any of these powers vested
in Congress are to be exercised in agreement with a foreign
power, the agreement with such foreign nation must first
be completed by the treaty-making power, but this agreewent, though it is a treaty in the meaning of that word as
used in international law, 25 is not a treaty in the sense in-
tended by the Constitution when it says a treaty is the
supreme law of the land. To be that, it must be sanctioned
by an act of Congress. This view, it is submitted, not
only does no violence to the Constitution, but on the contrary gives effect to the seemingly conflicting powers of the
two departments without making one supreme over the
other.
That the conclusion here arrived at is not a strained or
narrow one, but the restriction contended to exist is politically a natural and fundamental one, is shown by the fact
that similar restrictions exist in other countries. By the law
of England, though the power of the King in international
affairs in comparison with the power of parliament is
greater than that of the President in comparison with
Congress, as the King alone can directly make war and
' This distinction between a treaty, as that word is used in international law, and as it is used in our Constitution, has been taken by the
Supreme Court in Hoover v. Yaker, 9 Wall. 32. It was there held that
while under the general principles of international law a treaty is
binding from the date of its signing, and that the exchange of ratificatfins has a retroactive effect, that under our Constitution, since a treaty
is declared to be the supreme law of the land, a different rule prevails
when a treaty operates on individual rights. In such case it is not
effective until it is ratified by the Senate and proclaimed. The same
difference may be seen in the case where a treaty has been abrogated
by a subsequent act of Congress. In such case the treaty as an agreement still subsists, but as the supreme law of the land it has been
abrogated.
OF THE PRESIDENT AND SENATE
peace, yet no treaty made by the King which "involves
either a charge on the people, or a change in the law of
the land" can "be carried into effect without the sanction
of parliament. Such treaties are therefore made subjct to
the approval of parliament.
commerce . . ." 98
.
.
Such are treaties of
By Art. LXVIII of the Constitution of Belgium, treaties
of commerce and those that may burden the State, i.e., impose financial obligations, or bind Belgians individually are
not effective until they have received the assent of the Chambers; and no cession or exchange of territory may take place
except by virtue of a law."
In the Netherlands treaties for a change of territory, that
impose pecuniary obligations on the kingdom or that contain any other provision concerning legal rights, require the
approval of the States-General.V8
A strict construction of the Fundamental Statute of Italy
would require the assent of the Chambers only to treaties
involving financial obligations and change of territory. "In
practice, however, treaties of commerce as well as all treaties
touching upon matters legally belonging to parliament are
submitted to that body for ratification." 29
Art. VIII of the Constitutional Law of France of x875
provides: "The President of the Republic negotiates and
ratifies treaties. He communicates them to the Chambers
as soon as the interest and safety of the State permit.
Treaties of peace, and of commerce, treaties which involve
the finances of the State, those relating to the persons and
property of French citizens in foreign countries, shall become definitive only after having been voted by the two
chambers. No cession, no exchange, no annexation of
territory shall take place except by virtue of a law." The
practice of the French Chambers has been to give the
II Anson, Law and Cust. of the Const, p. 297.
-
CrandalL p. 187.
Crandall, p. 9o.
Crandall, p. 193.
EXTENT OF TREATY-MAKING POWER
widest scope to the meaning of the terms "commerce" and
"finances" in this article, and treaties affecting only indirectly commerce and finance are ratified by the Cham80
bers.
It is provided in Art. XI of the Constitution of 1871 of
the German Empire that treaties which refer to matters
which, according to Art. IV belong to the field of imperial
legislation for their conclusion, the consent of the Bundesrath is necessary, and for their validity the approval of the
Reichstag. Art. IV includes literary and industrial property, commerce, customs duties, citizenship and postal, telegraphic and railway matters.""
In Austria-Hungary the Austrian Constitution requires
the consent of the Reichsrath to all commercial treaties and
those that burden the State or a portion of it, or impose
obligations on individual subjects, or make territorial
changes. 82
The Constitution of Spain has similar provisions, and
expressly provides that the legislation must precede ratification.3 8
WILLIAM
University of Pennsylvania.
(To be continued.)
See Crandall, p. 178.
Crandall, I97.
Crandall, 2o.
" Crandall, 2o5.
E.
MIKELL.